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State v. Gates

Supreme Court of Delaware

June 25, 2019

STATE OF DELAWARE, Employer Below, Appellant,
v.
NICHOLAS GATES, Claimant Below, Appellee.

          Submitted: May 8, 2019

          Court Below: Superior Court of the State of Delaware C.A. No. K18A-04-002

         Upon appeal from the Superior Court. AFFIRMED.

          John J. Klusman, Esquire (Argued), and Kenneth L. Wan, Esquire, Tybout Redfearn & Pell, Wilmington, Delaware, for Appellant, State of Delaware.

          Walt F. Schmittinger, Esquire (Argued), and Candace E. Holmes, Esquire, Schmittinger and Rodriguez, P.A., Dover, Delaware, for Appellee, Nicholas Gates.

          Before VALIHURA, VAUGHN, and SEITZ, Justices.

          VAUGHN, Justice.

         I. INTRODUCTION

         The State of Delaware appeals from an order of the Superior Court that affirmed a determination by the Industrial Accident Board (the Board) that Nicholas Gates was working within the course and scope of his employment when he was injured in a motor vehicle collision. At the time of the collision, Gates was employed by the State as a road-maintenance equipment operator for the Department of Transportation (DelDOT). The collision occurred while he was responding to a "call-back" after his normal work hours. He was called back to attend to a roadside accident. In other words, he had completed his normal shift for the day and left for home, but was called back to perform whatever road maintenance might be necessary as a result of the road-side accident. As was common practice with callbacks, he was to proceed first to the DelDOT yard to get equipment and to then continue on to the road-side accident site. His collision occurred while he was on his way to the DelDOT yard.

         Gates sought workers' compensation benefits from the State for his injury. At the hearing before the Board, the State argued that State of Delaware Merit Rule 4.16 [1] and a document titled "Call-Back Pay Guidelines and Recommended Procedure" (the Call-Back Pay Guidelines)[2] were part of Gates's employment contract. It further argued that according to these provisions, Gates was not to be paid for a call-back until he arrived at the DelDOT yard. Because Gates's collision occurred before he arrived at the yard, the State argued, his injury occurred outside the course and scope of his employment and was, therefore, not compensable under Delaware's Workers' Compensation Act (the Act).[3] The Board looked to the parties' prior course of conduct to determine the terms of the employment contract and found that Gates's injury was compensable under the Act because, based on the parties' prior course of conduct, he "was working within the course and scope of his employment contract when the motor vehicle accident occurred."[4]

         The Superior Court affirmed the Board's decision.

         The State makes two arguments on appeal to this Court. First, it contends that the Board committed legal error by misapplying the principles set forth by this Court to determine if an employee was injured within the course and scope of employment. It repeats the argument it made to the Board that the terms of Gates's employment-Merit Rule 4.16 and the Call-Back Pay Guidelines, in particular- indicate that he was not to be paid for a call-back until he arrived at the DelDOT yard and that, therefore, the Board erred in finding that his injury occurred within the course and scope of his employment. Second, it contends that the Board's decision was not supported by substantial evidence because Gates admitted at the Board hearing that he was not paid for the call-back on the day of the collision.

         Gates contends that notwithstanding Merit Rule 4.16 or the Call-Back Pay Guidelines, the State's actual practice was to pay him (and his co-workers) for a callback from the time the call was received. Accordingly, he argues that the Board correctly determined that he was acting within the course and scope of his employment at the time of the collision.

         For the reasons that follow, we conclude that the Superior Court, and therefore the Board, should be affirmed. The Board applied the correct legal standard by first looking to the terms of the employment arrangement (or contract) to determine whether Gates's injury occurred within the course and scope of his employment. The Board, moreover, acted within its discretion in finding, based on Gates's unrebutted testimony as to the parties' course of conduct prior to the collision, that the terms of Gates's employment contract established he was to be paid for a callback from the time he received the call and that, at the time of the collision, he was working within the course and scope of this contract. These factual findings are supported by substantial evidence and will not be disturbed on appeal. Based on these factual findings, the Board did not err in determining that Gates's injury was compensable under the Act.

         II. FACTS AND PROCEDURAL HISTORY

         The Board held a hearing on March 15, 2018, at which it heard testimony from Gates and a human-resource representative who testified on the State's behalf. The Board also considered documents submitted by the State regarding overtime service, stipulated facts, and competing medical expert testimony. The critical issue at the hearing was whether Gates was acting within the course and scope of his employment at the time of the collision.

         At the hearing, Gates testified that at the time of the collision, he had worked for the State for four months as an equipment operator, with his primary job duties being road maintenance. His regular hours of employment were 7:00 a.m. to 3:00 p.m., Monday through Friday. He was classified as essential personnel and drew overtime pay for work outside his regular hours. Such after-hours work is classified as "call-back" time. He was required to respond to call-backs, and a failure to respond could result in termination. He testified that the State frequently called him back for work after hours. For a call-back, he explained, he was paid a minimum of four hours overtime even if he only worked one hour. According to Gates, at the time of the collision, crew leaders recorded the regular working hours of employees, but employees recorded their own call-back hours. He also testified that he would record his call-back time from the moment he received the call and would stop recording his time when he completed the job. Gates testified that on the day of the collision, he received the call-back around 3:30 p.m., after his shift had ended at 3:00 p.m.

         The State's human-resource representative, Brittany Ford, testified regarding Merit Rule 4.16 and the Call-Back Guidelines, explaining that for someone in Gates's position, call-back pay is calculated from the time the employee arrives at the yard, not from the time of the phone call.[5] She explained the State's position that Merit Rule 4.16 and the Call-Back Guidelines formed part of Gates's employment agreement. She testified that Merit Rule 4.16 and other Merit Rules were referenced in the one-hour orientation provided to all new employees, although she acknowledged that the State did not provide physical copies of the Merit Rules to new employees. Instead, the Merit Rules were merely referenced during employee orientations, and the employees were instructed as to where they ...


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